Law Commons^™

Loud And Soft Anti-Chevron Decisions, Michael Kagan

Scholarly Works

This Article proposes a methodology for interpreting the Supreme Court's long-standing inconsistency in the application of the Chevron doctrine. Developing such an approach is important because this central, canonical doctrine in administrative law is entering a period of uncertainty after long seeming to enjoy consensus support on the Court. In retrospect, it makes sense to view the many cases in which the Court failed to apply Chevron consistently as signals of underlying doctrinal doubt. However, to interpret these soft anti-Chevron decisions requires a careful approach, because sometimes Justices are simply being unpredictable and idiosyncratic. However, where clear patterns can be …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

Introduction To The U.S. Feminist Judgments Project, Linda L. Berger, Kathryn M. Stanchi, Bridget J. Crawford

Scholarly Works

The U.S. Feminist Judgments Project turns attention to the U.S. Supreme Court. Contributors to this volume challenge the formalistic concepts that U.S. Supreme Court opinions are, or should be, written from a neutral vantage point and that they are, or should be, based on deductive logic or “pure” rationality. When the project’s authors brought their own feminist consciousness or philosophy to some of the most important (and supposedly “neutral”) decisions and assertions about gender-related issues, the judicial decisions took on a very different character. Feminist consciousness broadens and widens the lens through which we view law and helps the decision …

Workplace Law Cases In The Tenth Term Of The Roberts Court: Between The Usual Ideological Lines, Ruben J. Garcia

Scholarly Works

My review of the Supreme Court's October 2014 Term will focus on cases involving workplace law statutes such as the Fair Labor Standards Act of 1938 (FLSA), Title VII of the Civil Rights Act of 1964 (Title VII), the Labor Management Relations Act of 1947 (LMRA) and the Whistleblower Protection Act of 1989 (WPA). These cases can be viewed through the lens of the following trends: 1) the Court continues its judicial narrowing of the Fair Labor Standards Act and federal labor law; 2) plaintiffs who have the backing of the administrative agencies are more likely to be successful; and …

"An Equally Divided Court": Workplace Law In The U.S. Supreme Court 2015-2016, Ruben J. Garcia

Scholarly Works

The 2015-2016 Term of the United States Supreme Court was scarcely halfway over when Justice Antonin Scalia passed away on February 12, 2016. This event and the political gridlock over his successor defined the Term in some ways more than the actual decisions of the Court, particularly when the resulting vacancy led an “equally divided” Supreme Court to affirm the courts below in a one sentence judgment. The most watched of these cases in workplace law was Friedrichs v. California Teachers Association, where the Supreme Court’s 4-4 tie avoided the overruling of decades of precedent upholding the constitutionality of agency …

Hobby Lobby: The Crafty Case That Threatens Women's Rights And Religious Freedom, Leslie C. Griffin

Scholarly Works

Despite the pro-religion rhetoric surrounding it, Hobby Lobby marks a loss of religious freedom. Missing from the majority's opinion is the core concept that religious freedom is necessary to protect the rights of all Americans, and that a religious belief must not be imposed on citizens through the force of law. Any interpretation of the First Amendment or the Religious Freedom Restoration Act ("RFRA")' that imposes one citizen's religious faith upon another must be rejected. This Article defends this non-imposition model of religious freedom and describes why and how Hobby Lobby incorrectly departed from it.

A Rhetorician’S Practical Wisdom, Linda L. Berger

Scholarly Works

For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.

For Jack, the essence of a …

Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger

Scholarly Works

Kairos is an ancient rhetorical concept that was long neglected by rhetorical scholars, and its significance to legal argument and persuasion has been little discussed. Through their use of two words for time, chronos and kairos, the Greeks were able to view history as a grid of connected events spread across a landscape punctuated by hills and valleys. In chronos, the timekeeper-observer constructs a linear, measurable, quantitative accounting of what happened. In kairos, the participant-teller forms a more qualitative history by shaping individual moments into crises and turning points. From a rhetorical perspective, chronos is more closely allied with the …

The Fourth Era Of American Civil Procedure, Thomas O. Main, Stephen N. Subrin

Scholarly Works

Every contemporary American lawyer who has engaged in litigation is familiar with the now fifty-four-volume treatise, Federal Practice and Procedure. Both of that treatise’s named authors, Charles Alan Wright and Arthur Miller, have mourned the death of a Federal Rules regime that they spent much of their professional lives explaining and often celebrating. Wright shared a sense of gloom about federal procedure that he compared to the setting before World War I. Miller has also published a series of articles that chronicled his grief.

We agree that something has fundamentally changed. In fact, we believe that we are in …

Pursuing Justice For The Child: The Forgotten Women Of In Re Gault, David S. Tanenhaus

Scholarly Works

In this article, I first draw on my recent book The Constitutional Rights of Children to introduce the facts of the case and place the case in the larger context of the history of American juvenile justice. I then focus specifically on the role of four remarkable women in the history of this landmark decision: Marjorie Gault, Gerald's mother; Amelia Lewis, Gerald's lawyer; Lorna Lockwood, an Arizona lawyer who became the first woman to serve as the Chief Justice of a State Supreme Court; and Getrude "Traute" Mainzer, who assisted in the litigation of Gerald's case before the U.S. Supreme …

The Worst Supreme Court Case Ever? Identifying, Assessing, And Exploring Low Moments Of The High Court, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

Terrace V. Thompson And The Legacy Of Manifest Destiny, Jean Stefancic

Nevada Law Journal

No abstract provided.

Blackmun (And Scalia) At The Bat: The Court's Separation-Of-Powers Strike Out In Freytag, Tuan Samahon

Nevada Law Journal

No abstract provided.

Ricci V. Destefano: Diluting Disparate Impact And Redefining Disparate Treatment, Ann C. Mcginley

Nevada Law Journal

No abstract provided.

Carnival Cruise Lines, Inc. V. Shute: The Titanic Of Worst Decisions, Linda S. Mullenix

Nevada Law Journal

No abstract provided.

Lassiter V. Department Of Social Services: Why Is It Such A Lousy Case?, Brooke D. Coleman

Nevada Law Journal

No abstract provided.

Globe Refining Co. V. Landa Cotton Oil Co. And The Dark Side Of Reputation, Larry T. Garvin

Nevada Law Journal

No abstract provided.

Tending To Potted Plants: The Professional Identity Vacuum In Garcetti V. Ceballos, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

On Teaching Conflicts And Why I Dislike Allstate Insurance Co. V. Hague, Thomas O. Main

Nevada Law Journal

No abstract provided.

Setting Us Up For Disaster: The Supreme Court's Decision In Terry V. Ohio, Thomas B. Mcaffee

Nevada Law Journal

No abstract provided.

Circumstance And Strategy: Jointly Authored Supreme Court Opinions, Laura Krugman Ray

Nevada Law Journal

No abstract provided.

Contract Law Walks The Plank: Carnival Cruise Lines, Inc. V. Shute, Charles L. Knapp

Nevada Law Journal

No abstract provided.

Bush V. Gore: The Worst (Or At Least Second-To-The-Worst) Supreme Court Decision Ever, Mark S. Brodin

Nevada Law Journal

No abstract provided.

Ashcroft V. Iqbal: Contempt For Rules, Statutes, The Constitution, And Elemental Fairness, Steve Subrin

Nevada Law Journal

No abstract provided.

Nigro V. United States: The Most Disingenuous Supreme Court Opinion, Ever, A. Christopher Bryant

Nevada Law Journal

No abstract provided.

Naim V. Naim, Richard Delgado

Nevada Law Journal

No abstract provided.

Hustler V. Falwell: Worst Case In The History Of The World, Maybe The Universe, John M. Kang

Nevada Law Journal

No abstract provided.

Lynch And The Lunacy Of Secularized Religion, Frederick Mark Gedicks

Nevada Law Journal

No abstract provided.

On Teaching Conflicts And Why I Dislike Allstate Insurance Co. V. Hague, Thomas O. Main

Scholarly Works

No abstract provided.

Tainted Love: An Increasingly Odd Arbitral Infatuation In Derogation Of Sound And Consistent Jurisprudence, Jeffrey W. Stempel

Scholarly Works

No abstract provided.